Order against posting of 'Innocence of Muslims' overturned

SAN FRANCISCO — An anti-Muslim film that sparked death threats against an actress and rioting abroad may once again be viewed on YouTube, a federal appeals court ruled Monday.

In a 10-1 decision, the U.S. 9th Circuit Court of Appeals said a three-judge panel erred last year when it ordered Google Inc. and its subsidiary, YouTube, to take down “Innocence of Muslims” — described by the court as a “blasphemous video proclamation against the Prophet Mohammed.”

The takedown order “gave short shrift to the 1st Amendment values at stake,” Judge M. Margaret McKeown wrote for the court. “The mandatory injunction censored and suppressed a politically significant film — based upon a dubious and unprecedented theory of copyright.”

Cindy Lee Garcia, an actress the court said was “bamboozled when a movie producer transformed her five-second acting performance” into an anti-Muslim video, sued to have it taken off the Internet. The video was blamed for violence in the Middle East, and Garcia said threats forced her to leave her home and work.

She argued she had a copyright interest in her performance, and the 9th Circuit panel agreed with her in a 2-1 decision that sparked concern in the film industry, the news media and among promoters of Internet freedom. The Times joined other media in asking the court to reverse the panel’s decision.

Monday’s ruling said the takedown order — and a subsequent amended version that required only Garcia’s performance to be struck from the video — violated the 1st Amendment. The court noted that the Copyright Office had rejected Garcia’s application to register her performance.

“The panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar,” McKeown wrote.

The court nevertheless sympathized with Garcia, who said the filmmakers had lied about the nature of the film and dubbed over her voice with anti-Muslim comments.

“We have no reason to question Garcia’s claims that she was duped by an unscrupulous filmmaker and has suffered greatly from her disastrous association with the ‘Innocence of Muslims’ film,” McKeown wrote.

Judge Alex Kozinski, who wrote the ruling against Google, dissented.

The majority’s “new standard artificially shrinks authorial rights by holding that a performer must personally record his creative expression in order to retain any copyright interest in it,” Kozinski wrote.

“Our injunction has been in place for over a year, “ he said. “Reports of the Internet’s demise have been greatly exaggerated.”

M. Cris Armenta, Garcia’s lawyer, said an appeal to the Supreme Court was unlikely.

“The decision short-changes the threats on the life of Cindy Lee Garcia, who did not voluntarily participate in the hateful messages that the controversial trailer about Prophet Mohammed espoused around the world,” Armenta said in a written statement.

She said Garcia learned through the litigation who financed the film and planned to make that information public at a later date. The film was made by Nakoulas Basselley Nakoula, also known as Sam Bacile, a Coptic Christian born in Egypt. Armenta said the case uncovered bank transfers of money from overseas.

She also said that she and Garcia have given the FBI reports of “computer hacking and computer-monitoring incidents from unknown sources.”

Nakoula was sentenced to a year behind bars in 2012 for violating the terms of an earlier conviction for bank and credit card fraud.

“We have long believed that the previous ruling was a misapplication of copyright law,” a YouTube spokesperson said in an email. “We're pleased with this latest ruling by the Ninth Circuit.” The spokesperson did not respond to questions.

The video was blamed for the attack in Benghazi, Libya, that killed Ambassador J. Christopher Stevens and others. Although YouTube had yanked it on the court’s orders, it was still available on other websites.

The news media, siding with Google, complained that last year’s ruling could have permitted subjects of news stories to seek court orders to remove coverage they disliked. Filmmakers said the decision would stifle creativity and hamper distribution of movies.

The Screen Actors Guild supported last year’s decision, saying actors add originality to roles and the ruling would apply only in rare cases.